The Invisible Circumstances of Notice
58 Pages Posted: 28 Oct 2020 Last revised: 7 Dec 2020
Date Written: October 6, 2020
The due process right of notice—isolated from its close cousin, the opportunity to be heard—is relatively understudied and under-analyzed compared to other fundamental rights. This analytical deficit would be less troubling if the modern American execution of notice and its mechanics were mostly unproblematic, but for a number of participants in the modern-day adversarial system, notice does not function particularly well. This Article provides a new and comprehensive account of why notice matters as a due process right and why it has been largely ignored.
The current case-by-case approach articulated in Mullane v. Central Hanover Bank contains the seeds of adaptability, but its central paradox is that, by encouraging judges to consider the individual circumstances of the parties and case before them, judges have failed to see the broader changes in circumstances within which litigation and notice take place. This “modern” standard for notice is actually an expansion and reification of the old and the project of this Article is to unpack the hidden contents of this Pennoyer/Mullane standard. It serves as a benchmark against which judges and lawmakers evaluate the sufficiency of new tools and methods. The permissibility of such innovations depends on how closely they mimic or improve on the methods within an existing hierarchy of old methods. Once one understands how the new circumstances of notice no longer fit the old framework, it becomes far easier to evaluate and promote newer and more technologically advanced methods of notice because they need not be evaluated against antiquated benchmarks that reflect older circumstances.
These invisible circumstances of notice are a set of shared assumptions about what “real” or “good notice” is—who serves it and how; who receives it and where; and what “process” is. The extent to which other forms of service deviate from the Pennoyer/Mullane world of invisible circumstances and determines their constitutional and sub-constitutional acceptability. The invisible circumstances of notice center around five core attributes of in-hand personal service, the paradigm of ideal notice and service from the Pennoyer era. These attributes—thought to be long discarded as mandates—continue to dominate how notice rules are promulgated and how notice plans and practices are evaluated.
The Article concludes by suggesting that lawmakers and courts must rethink the “circumstances of the circumstances,” the idea that the circumstances of notice are unique to each lawsuit and arrive fully formed. Contrary to this implicit assumption, courts and lawmakers are active participants in creating and maintaining the invisible circumstances of notice. Lawmakers should not wait for the circumstances of notice to change – key changes can be forged by the state and the judiciary itself.
Keywords: notice, due process, personal jurisdiction, courts, service of process, law and technology, e-service, class actions, consumer law, cognovit notes
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